Exhibit 10.1


 


LOAN
AMENDMENT AGREEMENT


 


This Loan Amendment Agreement dated as of May 16,
2008 (this “Agreement”), is made by and among General Electric Capital
Corporation (“GE Capital”), Oxford Finance Corporation (“Oxford” and, together
with GE Capital, “Lenders”) and Favrille, Inc. a Delaware corporation
(“Borrower”).


 


WITNESSETH:


 


WHEREAS, GE Capital and Borrower are parties to
that certain Master Security Agreement dated as of December 30, 2005 as
amended by an Amendment No. 1 dated as of December 30, 2005, pursuant
to which GE Capital made a series of loans (the “GE Loans”) to Borrower arising
under and evidenced by a series of promissory notes delivered by Borrower to GE
Capital (the foregoing Master Security Agreement, the promissory notes, this Agreement,
and any other documents evidencing or relating to the obligations arising
thereunder, as any such documents may have been amended, restated, modified or
supplemented from time to time, are hereafter referred to as the “GE Loan
Documents”), which GE Loans are secured by a security interest in certain
property owned by Borrower (the “GE Collateral”); and


 


WHEREAS, Oxford and Borrower are parties to that
certain Master Security Agreement dated as of July 26, 2004, as amended by
an Amendment No.1 dated December 29, 2004, and further amended by
Amendment No.2 dated as of June 16, 2005, and further amended by Amendment
No. 3 dated as of December 30, 2005, pursuant to which Oxford made a
series of loans (the “Oxford Loans”) to Borrower arising under and evidenced by
a series of promissory notes delivered by Borrower to Oxford (the foregoing
Master Security Agreement, the promissory notes, this Agreement, and any other
documents evidencing or relating to the obligations arising thereunder, as any
such documents may have been amended, restated, modified or supplemented from
time to time, are hereafter referred to as the “Oxford Loan Documents”), which
Oxford Loans are secured by a security interest in certain property owned by
Borrower (the “Oxford Collateral”); and


 


WHEREAS, the GE Loan Documents Master Security
Agreement dated as of July 26, 2004, as amended by an Amendment No.1 dated
December 29, 2004, and further amended by Amendment No.2 dated as of June 16,
2005, and further amended by Amendment No. 3 dated as of December 30,
2005 (the “GE Letter of Credit Covenant”); and


 


WHEREAS, the Oxford Loan Documents include a
covenant that requires Borrower to cause the issuance of a standby letter of
credit to Oxford in the event that Borrower’s unrestricted cash equivalents in
certain deposit accounts fall below $15,000,000 (the “Oxford Letter of Credit
Covenant”); and


 


WHEREAS, Borrower has requested that each Lender agree to
reduce the $15,000,000 figure in its respective covenant to $14,500,000; and


 


WHEREAS, each Lender is willing to do so on the terms and
conditions set forth herein.


 


NOW, THEREFORE, in consideration of the premises, the
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties do hereby agree as follows:


 


STATEMENT OF TERMS


 


.1             Amendment of GE
Letter of Credit Covenant; Payment of Amendment Fee.  GE Capital and Borrower hereby agree that the GE
Letter of Credit Covenant is hereby amended to delete the reference to
“$15,000,000” and to replace it with “$14,500,000.”  Other than such specific amendment, all of
the terms and conditions applicable to 


 





















 


the GE Letter of Credit Covenant remain in full
force and effect and are not modified by this Agreement.  In consideration of GE Capital agreeing to
the foregoing, Borrower agrees to pay GE Capital a fee in the amount of
$16,693.42 (the “GE Capital Amendment Fee”). 
The GE Capital Amendment Fee shall be fully-earned upon the execution
and delivery of this Agreement and shall constitute part of the obligations of
Borrower to GE Capital secured by the GE Capital Collateral.  The GE Capital Amendment Fee shall be paid by
Borrower to GE Capital by wire transfer on June 2, 2008.


 


.2             Amendment of
Oxford Letter of Credit Covenant; Payment of Amendment Fee.  Oxford and Borrower hereby agree that the Oxford
Letter of Credit Covenant is hereby amended to delete the reference to
“$15,000,000” and to replace it with “$14,500,000.”  Other than such specific amendment, all of
the terms and conditions applicable to the Oxford Letter of Credit Covenant
remain in full force and effect and are not modified by this Agreement.  In consideration of Oxford agreeing to the
foregoing, Borrower agrees to pay Oxford a fee in the amount of $13,306.58 (the
“Oxford Amendment Fee”).  The Oxford
Amendment Fee shall be fully-earned upon the execution and delivery of this
Agreement and shall constitute part of the obligations of Borrower to Oxford
secured by the Oxford Collateral.  The
Oxford Amendment Fee shall be paid by Borrower to Oxford by wire transfer on June 2,
2008.


 


.3             GE Loan
Documents and Oxford Loan Documents Are Separate and Distinct.  The parties acknowledge that they are entering into
a single agreement modifying the GE Loan Documents and the Oxford Loan
Documents solely for administrative convenience.  By entering into this Agreement, neither GE
Capital nor Oxford is acquiring or undertaking any rights or obligations under
the loan documents of the other Lender. 
The parties hereto agree that the GE Loan Documents and the Oxford Loan
Documents shall remain separate and distinct legal obligations of the parties
thereto.  Nothing herein shall prevent or
inhibit either GE Capital or Oxford from entering into any future amendment,
waiver, consent, or other agreement with Borrower under its respective loan
documents and each Lender reserves its rights to do so; provided that nothing
herein is intended to alter the terms of the Intercreditor Agreement between GE
Capital and Oxford which shall continue in effect on the terms set forth
therein.


 


.4             Acknowledgement of Obligations.  Except as expressly modified, consented to, or
waived under this Agreement, Borrower hereby acknowledges, confirms, and
ratifies all of the terms and conditions set forth in, and all of its
obligations under, each of the GE Loan Documents and the Oxford Loan
Documents.  All amounts owed by Borrower
to the respective Lender thereunder are unconditionally owing by Borrower,
without offset, defense, or counterclaim of any kind.


 


.5             Binding Effect of Documents.  Borrower hereby acknowledges, confirms, and agrees
that: (a) except as otherwise modified by the terms of this Agreement,
each of the GE Loan Documents and the Oxford Loan Documents has been duly executed
and delivered by Borrower, and each is in full force and effect as of the date
hereof; (b) the agreements and obligations of Borrower contained in such
documents and in this Agreement constitute the legal, valid, and binding
obligations of Borrower, enforceable against it in accordance with their
respective terms, and Borrower has no valid defense to the enforcement of such
obligations; and (c) each Lender is and shall be entitled to the rights,
remedies, and benefits provided in its loan documents and applicable law.


 


.6             Expenses.  Borrower agrees to reimburse each Lender for
all reasonable costs and expenses, including reasonable attorneys fees,
incurred by such Lender in connection with (a) Borrower’s request for an
amendment or waiver with respect to the GE Capital Letter of Credit Covenant
and the Oxford Letter of Credit Covenant, (b) the negotiation,
documentation, and implementation of this Agreement, and (c) any
subsequent request by Borrower for a further amendment or waiver with respect
to the GE Capital Letter of Credit Covenant and the Oxford Letter of Credit
Covenant or any other provision of the GE Capital Loan Documents or the Oxford
Loan Documents.  The costs and expenses
referred to in the foregoing clauses (a) and (b) are hereafter referred
to as the “Current Lender Costs.”  The
costs and expenses referred to in the foregoing clause (c) are hereafter
referred to as the “Future Lender Costs.” 
Borrower agrees to pay to each Lender its Current Lender Costs by wire
transfer on June 2, 2008; provided that the applicable Lender has invoiced
Borrower for such Current Lender Costs on or before May 28, 2008.  Any other Current Lender Costs and all Future
Lender Costs shall be paid to the applicable Lender within five business days
of such Lender invoicing Borrower therefor.


 


.7             Further
Assurances.  Borrower agrees that it shall, at its own
expense and upon the reasonable written request of a Lender, duly execute and
deliver, or cause to be duly executed and delivered, to such Lender such
further documents and do and cause to be done such further acts as may be
necessary or proper in the reasonable opinion of such Lender to carry out more
effectively the provisions and purposes of this Agreement and the other Loan
Documents.


 





















 


.8             General Representations and Warranties.  To induce each Lender to enter into this Agreement,
Borrower hereby represents and warrants to each Lender that: (a) each
representation and warranty of Borrower set forth in the GE Loan Documents and
the Oxford Loan Documents is true and correct in all material respects on and
as of the date hereof (except to the extent that any such representation or
warranty expressly relates to a prior specific date or period, in which case it
is true and correct as of such prior date or period); (b) no default has
occurred and is continuing as of this date under the GE Loan Documents or the
Oxford Loan Documents; (c) Borrower has the power and is duly authorized
to enter into, deliver and perform its obligations under this Agreement and to
perform its obligations under the GE Loan Documents and the Oxford Loan
Documents; and (d) this Agreement and each of the GE Loan Documents and
the Oxford Loan Documents is the legal, valid and binding obligation of
Borrower enforceable against it in accordance with its terms.


 


.9             Conditions Precedent to Effectiveness of this Agreement.  This
Agreement shall become effective upon the satisfaction (or waiver by both
Lenders in the sole discretion of each) of each of the following conditions
precedent (the “Agreement Effective Date”):


 


.A                                   Each Lender shall have received one or more
counterparts of this Agreement duly executed and delivered by Borrower and each
other person party hereto, together with such other documents, if any, as
either Lender shall specify.


 


.10           Release.  Borrower hereby releases, remises, acquits and
forever discharges each Lender and each of their employees, agents,
representatives, consultants, attorneys, fiduciaries, officers, directors,
partners, predecessors, successors and assigns, subsidiary corporations, parent
corporations, and related corporate divisions (collectively, the “Released
Parties”), from any and all actions and causes of action, judgments,
executions, suits, debts, claims, demands, liabilities, obligations, damages
and expenses of any and every character, known or unknown, direct and/or
indirect, at law or in equity, of whatsoever kind or nature, for or because of
any matter or things done, omitted or suffered to be done by any of the
Released Parties prior to and including the Agreement Effective Date, which
arises out of or is connected to the GE Loan Documents and the Oxford Loan
Documents (collectively, the “Released Matters”).  Borrower acknowledges that the agreements in
this Section are intended to be in full satisfaction of all or any alleged
injuries or damages arising in connection with the Released Matters.


 


Without limiting the generality of the foregoing,
Borrower hereby waives the provisions of any statute that prevents a general
release from extending to claims unknown by the releasing party.  By entering into this release, Borrower
recognizes that no facts or representations are ever absolutely certain and it
may hereafter discover facts in addition to or different from those which it
presently knows or believes to be true, but that it is the intention of
Borrower to hereby to fully, finally and forever settle and release all
matters, disputes and differences, known or unknown, suspected or
unsuspected.  Accordingly, if Borrower
should subsequently discover that any fact that it relied upon in delivering
this release was untrue, or that any understanding of the facts was incorrect,
Borrower shall not be entitled to set aside this release by reason thereof,
regardless of any claim of mistake of fact or law or any other circumstances
whatsoever.  Borrower acknowledges that
it is not relying upon and has not relied upon any representation or statement
made by either Lender with respect to the facts underlying this release or with
regard to Borrower’s rights or asserted rights.


 


This release may be pleaded as a full and complete
defense and/ or as a cross-complaint or counterclaim against any action, suit,
or other proceeding that may be instituted, prosecuted or attempted in breach
of this release.  Borrower acknowledges that
the release contained herein constitutes a material inducement to each Lender
to enter into this Agreement and that neither Lender would not have done so but
for its expectation that such release is valid and enforceable in all events.


 


.11           Continuing Effect of Documents.  Except as
expressly modified, amended, or waived hereby, the provisions of each of the GE
Loan Documents and the Oxford Loan Documents, and the liens granted thereunder,
are and shall remain in full force and effect.


 





















 


.12           Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original and all of which when taken together shall constitute
one and the same document.  Any signature
delivered by a party via facsimile or electronic transmission shall be deemed
to be an original signature hereto.


 


.13           Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE WITHOUT REGARD TO THE
PRINCIPLES THEREOF REGARDING CONFLICTS OF LAWS.


 


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Next Page]


 





















 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered as of the day and year
specified at the beginning hereof.


 


 


	
   

  	
  FAVRILLE, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tamara A. Seymour

  
	
   

  	
  Name:

  	
    Tamara A.
  Seymour

  
	
   

  	
  Title:

  	
    Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GENERAL ELECTRIC
  CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott Towers

  
	
   

  	
  Name:

  	
    Scott
  Towers

  
	
   

  	
  Title:

  	
    Duly
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  OXFORD FINANCE CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ T. A. Lex

  
	
   

  	
  Name:

  	
    T. A. Lex

  
	
   

  	
  Title:

  	
      COO